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Madhya Pradesh High Court · body

2008 DIGILAW 1397 (MP)

Bhadar v. State of M. P.

2008-12-03

S.A.NAQVI

body2008
JUDGMENT 1. The appellant, Bhadar has preferred the appeal being aggrieved by the impugned judgment dated 16.2.1994 passed by First Additional Sessions Judge, Bhopal in Sessions Trial No. 111/92 whereby the appellant, Bhadar has been convicted under section 8-C read with section 20 (b) (ii) of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act') and sentenced to undergo 10 years of rigorous imprisonment and fined Rs. 1 lac, in default, two years and six months simple imprisonment. 2. Case of the prosecution in short is that on 4.8.1991 at about 7:30 pm., S.J. Zafrin (PW 6) received information from the informer, that near Moti Masjid, Bhopal, infront of Bazer Enterprises, the appellant is in possession of contraband article in polythene bag. SJ. Zafrin apprehended the appellant Bhadar alongwith witnesses and took search of him. Charas weighing 590 gms was found in three polythene packets from the possession of the appellant, Bhadar. The seized charas was being weighed through Ramdayal (PW 5), sample weighing 10 gms was taken from charas. Sample and remaining 580 gms charas was sealed separately. They were seized as per seizure memo Ex. P-2. Panchnama Exhibit P-3 was prepared. S.J. Zafrin along with seized articles and the accusedappellant came back to police station and made entry in Rojnamchasanha Exhibit P-7. Case was registered as Exhibit P-8C. Sample of seized contraband article was sent to chemical examiner, Government Opium & Alkaloid Works, Neemuch. As per the chemical examiner report Exhibit P-IO, the seized article was found to be charas. After completion of investigation, the appellant was charge-sheeted. Case was committed to the Court of Sessions for trial. 3. Learned trial Court framed charge under section 8-C read with section 20 (b) (ii) of NDPS Act. The appellant, Bhadar abjured the guilt and pleaded innocence and false implication. His defence is that he was taken by police from his house. 4. Prosecution examined six witnesses, no witness has been examined by the defence. After hearing learned counsel for both the parties, perusing evidence and material on record, learned trial Court convicted the appellant, Bhadar under section 8-C read with section 20 (b) (ii) of NDPS Act and sentenced him as hereinabove mentioned. Being aggrieved by the impugned judgment, the appellant has preferred the appeal. 5. I have heard learned counsel for both the parties, perused impugned judgment, evidence and material on record. 6. Being aggrieved by the impugned judgment, the appellant has preferred the appeal. 5. I have heard learned counsel for both the parties, perused impugned judgment, evidence and material on record. 6. Learned counsel for the appellant submitted that provisions of section 42, 43, 47 and 50 of NDPS Act have not been complied with, investigation is not fair. On 4.8.1991, it is alleged that contraband articles was seized from two persons and there is no evidence on record that, same sample was sent for analysis, which was seized from the appellant, Bhadar. There are discrepancies in the statement of prosecution witnesses and learned trial Court committed error in convicting and sentencing the appellant as hereinabove mentioned. Contrary to that, learned Public Prosecutor supported the impugned judgment and contended that learned trial Court did not err in convicting and sentencing the appellant. 7. Mohd. Yakub (PW 3) turned hostile. He is witness of seizure memo of Exhibit P-2, Panchnama Exhibit P-3 and receipt Exhibit P-4, but he is not supporting the factum of seizure of contraband article from the appellant, Bhadar and taking sample weighing 10 gms from the seized article. He is deposing against his previous statement Exhibit P-6. Statement of Mohd. Yakub is not reliable. 8. S.J. Zafrin (PW 6) deposed that on 4.8.1991 at about 6:50 p.m., he received information from the informer that the appellant, Bhadar Ali is standing near Moti Masjid to sell Charas. This information was entered in Rojnamchasanha No. 302 Exhibit P-l. Suraj Singh Chouksey (PW 1) entered information received by S.l. Zafrin in rojnamchasanha Exhibit P-I. No question has been asked in cross-examination of Suraj Singh Chouksey in this respect. Statement of S.J. Zafrin is also un-challenged. Evidence of these witnesses regarding receiving of information is reliable and it is proved that S.J. Zafrin on 4.8.1991, received information that near Moti Masjid, the appellant Bhadar is selling charas. 9. S.J. Zafrin (PW 6) deposed that he stated from Kotwali Bhopal near Moti Masjid Choraha, Akhtar Khan (PW 4) and Mohd. Yakub (PW 3), were called. Informant indicated the appellant, Bhadar and thereafter, the appellant was apprehended. S.J. Zafrin further deposed that he asked the appellant whether he wants his search through a Gazetted Officer, he refused and agreed to be searched by S.J. Zafrin. Yakub (PW 3), were called. Informant indicated the appellant, Bhadar and thereafter, the appellant was apprehended. S.J. Zafrin further deposed that he asked the appellant whether he wants his search through a Gazetted Officer, he refused and agreed to be searched by S.J. Zafrin. On search of the appellant, in one polythene bag, three polythene packets were found, every packet was wrapped by thread. The seized packets were being weighed by Ramdayal (PW 5). The weight of all the three packets were 590 gms., out of which, a sample of 10 gms was taken and sealed. Remaining contraband article and sample were seized as per seizure memo Exhibit P-2. Panchanama of taking Sample Exhibit P-3 was prepared. S.J. Zafrin came back to kotwali Bhopal and entered detailed report in rojnamchasanha Exhibit P-7. FIR Exhibit P-8 was registered. Ramdayal (PW 5) corroborated the factum of weighing the seized contraband article. Akhtar Khan (PW 4) also corroborated the testimony of S.J. Zafrin. He also deposed that police seized 590 gms. of charas from the possession of the appellant and sample weighing 10 gms. was taken from the seized charas and he had signed the seizure memo Exhibit P-2, Panchanama Exhibit P-3 and receipt Exhibit P-4 Statements of these witnesses are corroborated by seizure memo Exhibit P-2, Panchanama Exhibit P-3. Evidence of these witnesses are reliable and it is proved that 590 gms. alleged contraband article was seized from the possession of the appellant and sample weighing 10 gms. was taken from the alleged seized contraband article and they were sealed. 10. Learned counsel for appellant relying upon Dilip and another v. State of M.P. [ 2008 (1) JLJ 142 = 2007 CrLJ 880 ], vehemently argued that provisions of section 50 and 42 were not complied with hence, evidence of prosecution witnesses cannot be relied upon and the appellant is entitled for acquittal. On going through the prosecution evidence and rojnamchasanha Exhibit P-7C, it is crystal clear that the polythene bags was in the hand of the appellant, Bhadar and from that bag, three polythene packets were found which was seized. On going through the prosecution evidence and rojnamchasanha Exhibit P-7C, it is crystal clear that the polythene bags was in the hand of the appellant, Bhadar and from that bag, three polythene packets were found which was seized. Hence, it is crystal clear that no contraband article was seized from the person of the appellant, Bhadar hence, provision of section 50 of NDPS Act does not attract and even for the sake of argument, it is taken to be true that the provision of section 50 of NDPS Act has not been complied with, it does not adversely affect the prosecution evidence. It is held in the case of Dilip (supra) as under: "14. Ms. Vibha Datta Makhija, learned counsel appearing on behalf of the State, however, would support the judgment of the High Court contending that this sew 1802 Court in State of Punjab v. Balbir Singh [( 1994) 3 SCC 299] categorically held that an illegal search may not have any direct impact on the prosecution case. This Court therein opined as under: "The questions considered above arise frequently before the trial Court. Therefore we find it necessary to set out our conclusions which are as follows: (1)If a police officer without any prior information as contemplated under the .provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage section 50 of the NDPS Act would not be attracted and the question of complying, with the requirements thereunder would not arise. If during such search or arrest there is a chance of recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation, in accordance with the other provisions of the NDPS Act. (2-C) Under section 42 (1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation, in accordance with the other provisions of the NDPS Act. (2-C) Under section 42 (1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to section 42 (1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under section 42 (2) such empowered officer who takes down any information in writing or records the grounds under proviso to section 42 (1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been· explained or not, will be a question of fact in each case." 11. There is no evidence on record that S.l. Zafrin (PW 6) complied with the provisions of section 42 (1) and 42 (2) of NDPS Act. Both these provisions are mandatory in nature, as held by the apex Court. Entry in rojnamchasanha Exhibit P-3 by Suraj Singh Chouksey (PW 10) is not compliance of provision of section 42 (1) of NDPS Act because reasons that offence under Chapter 4 have been committed is not mentioned in Exhibit P-l. No separate panchnama has been prepared by S.l. Zafrin for compliance of provisions of section 42 (1) or 42 (2) of NDPS Act. He has not deposed a single word in this respect, hence, non-compliance of mandatory provisions of section 42 (I) and 42 (2) of NDPS Act, entitles the appellant for acquittal. 12. He has not deposed a single word in this respect, hence, non-compliance of mandatory provisions of section 42 (I) and 42 (2) of NDPS Act, entitles the appellant for acquittal. 12. There is evidence that sample was sent to Government Opium & Alkaloid Works, Neemuch for chemical analysis and as per the report Exhibit P-l0, sample was found to be charas. Though, it has been mentioned in Exhibit P-9C that sample seized from the appellant, Bhadar was sent for analysis and it was analysed. It is clear from Exhibit P-7C that on the same day, two persons were apprehended and from them contraband article were seized. One of them was Bhadar and the name of second person was Athar Ali. It is also clear from Exhibit P-7C that samples were prepared from alleged seized contraband article from both these persons. This fact is also clear from the evidence of S.l. Zafrin. There is no evidence that seized article and sample was kept in custody of Malkhana Moharair of Kotwali Bhopal and the same sample which was prepared from the seized contraband article from the appellant, Bhadar was sent for chemical analysis. There is no evidence that alleged seized contraband article and sample were kept in Malkhana Moharair from 4.8.1991 to 22.8.1991. Malkhana Moharair of Kotwali Bhopal has not been examined. Copy of register of Malkhana Kotwali, Bhopal in which entries being made has not been produced and proved in evidence. There is no evidence that seized contraband article and sample were kept in safe custody from 4.8.1991 to 22.8.1991 hence, only on the basis of evidence of S.l. Zafrin and documents Exhibit P-9C and Exhibit P-10, it cannot be held beyond reasonable doubt that same sample which was prepared from alleged seized contraband article from the appellant, Bhadar was sent for chemical analysis and report Exhibit P-l 0 pertains to the same sample. Consequently, prosecution has failed to prove beyond reasonable doubt that seized article from the appellant was charas. SJ. Zafrin seized the alleged contraband article from the appellant and he conducted the investigation and lodged FIR Exhibit P-Sc. In Megha Singh v. State of Haryana [ AIR 1995 SC 2339 ], it has been held that being a complainant, the same police officer should not have proceeded with the investigation of the case which suspects the fair and impartial investigation. 13. In Megha Singh v. State of Haryana [ AIR 1995 SC 2339 ], it has been held that being a complainant, the same police officer should not have proceeded with the investigation of the case which suspects the fair and impartial investigation. 13. As per above discussion, I am of the view that prosecution has failed to prove beyond reasonable doubt that charas has been seized from the possession of the appellant, Bhadar and learned trial Court committed error in relying upon the testimony of prosecution witnesses and oversighting the non-compliance of mandatory provisions of NDPS Act. Consequently, the judgment of conviction and order of sentence passed by learned trial Court is not maintainable. 14. Consequently. appeal has merit. Appeal is al1owed. The judgment of conviction dated 16.2.1994 and order of sentence passed by learned trial Court is hereby set aside. The appellant. Bhadar is acquitted of the charge under section 8-C read with section 20 (b) (ii) of NDPS Act. The appellant is on bail, his bail bond stands discharged.